Andhra HC (Pre-Telangana)
Govt. Of India, Ministry Of Defence, ... vs Nitin Gumbheer on 23 April, 1999
Equivalent citations: 1999(3)ALD306, 1999(3)ALT361, 1999 A I H C 2841, (1999) 2 LACC 49, (1999) 3 ANDHLD 306, (1999) 3 ANDH LT 361
Author: A.S. Bhate
Bench: A.S. Bhate
ORDER A.S. Bhate, J.
1. The decision in WP No.13099 of [992, disposed of by learned single Judge of this Court on 15-2-1993, is subject of challenge in this appeal.
2. The computation of the excess vacant land under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the 'Act') was the subject of writ petition. The learned single Judge by the impugned judgment held that notification under Section 10(3) of the Act dated 10-9-1992 issued by the second respondent declaring 4180.12 square metres as the excess vacant land, deserved to be quashed.
3. In the first place we have not been able to understand as to why the writ petition was entertained when there was adequate alternative statutory remedy provided by Section 33 of the Act. Section 33 is as follows :
"(1) A person aggrieved by an order made by the competent authority under this Act not being an order under Section 11 or an order under sub-section (1) of Section 30, may within thirty days of the date on which the order is communicated to him, prefer an appeal to such authority as may be prescribed (hereinafter in this section referred to as appellate authority):
Provided that the appellate authority may entertain the appeal after the expiry of the period of thirty days if it is satisfied that the applicant was prevented by sufficient causes from filing the appeal in time.
(2) On receipt of an appeal under subsection (1), the appellate authority shall, after giving the appellant an opportunity of being heard, pass such order thereon as it deems fit as expeditiously as possible.
(3) Every order passed by the appellate authority under this Section shall be final."
Apart from providing appeal under Section 33 the Act also provides a revision to the Government, if no appeal is preferred under Section 33 of the Act. However, the respondents in the writ petition, who are appellants before us, did not raise any such point either before the learned single Judge or in appeal before us. It is not that this Court is denuded of power under Article 226 of the Constitution of India due to the mere existence of alternative effective remedy. It is for the Court to consider as to whether it should exercise its discretionary powers under Article 226 of the Constitution even though alternative effective statutory remedy exists. The learned single Judge having exercised his jurisdiction to entertain the writ petition and the respondents having not raised any objection, it will not be appropriate for us to dispose of this appeal on spacious ground that effective alternative remedy existed for the petitioner and he should approach the appellate authority against the impugned notification under Section 10 of the Act.
4. There is no dispute that the total extent of land belonging to and in possession of the petitioner was 9619.78 square metres. It is also not disputed that out of this area 3331.00 square metres was already exempted from the provisions of the Act. Though this exemption was subsequently recalled, it is no more in dispute that the authorities have excluded that area while computing the ultimate permissible holding of the petitioner. It is further not disputed that there are two dwelling units already existing on the total land in question and the total built up area of these two dwelling units is 775.11 square metres. Out of this total built up area there is one independent construction which is a garage of 40 square metres. The petitioner had initially claimed by way of "appurtenant land" for both these dwelling units, an extent of 1000 square metres. At the time of hearing of the writ petition, it was conceded by the petitioner that he was entitled to 500 square metres in respect of one built up dwelling unit and, in respect of the other built up unit as it was only of 54 square metres, he was entitled only to 24 square metres as "appurtenant land". The Building Regulations required that in the Cantonment area only 3/8th of the land has to be kept as open space. Therefore, this concession was made. Therefore, inspite of item No. 1 considered by the learned single Judge i.e., built up area, the petitioner was entitled to deduct 524 square metres in all as appurtenant land from the total area. This finding is no more in challenge by the appellants now.
5. The next question was in respect of item No.2 which concerned "Rocky" area. Admittedly "Rocky" area was 1172.00 square metres. The learned Counsel for the appellants has contended that the "Rocky" area cannot be excluded from the "vacant land". The learned single Judge however, pointed out that the petitioner had specifically stated in his affidavit that this area cannot be taken into account for purpose of determining excess vacant land because, under the Bye-laws of Cantonment no double storeyed house or any part thereof abulting any street shall exceed the width of the street. The learned Judge held that the counter-affidavit of the respondents/appellants did not meet the contentions made in the affidavit of the petitioner. The learned single Judge held :
"I agree with the contention of the learned Counsel for the petitioner that since the respondents have not denied in the counter-affidavit that the rocky area is not fit for construction of building as per the Building Regulations, the said area has to be excluded."
This was essentially a finding of fact recorded by the learned single Judge on basis of averments in the petitioner's affidavit and averments in the counter-affidavit of the respondents/appellants. No question of law is involved in the same. This is because the definition of the term "vacant land" does not include land on which construction of a building is not permissible under the Building Regulations in force or any area in which such land is situated. (See Section 2(q) of the Act). Therefore, finding on item No.2 is unassailable. We confirm the same.
6. The main challenge is in respect of item No.3. The petitioner was claiming exemption of an extent of 2250 square metres of land which he claims as being used for road or pathway connecting his house from the main road. It is the contention of the petitioner that he is entitled to claim exemption for this road/ pathway under Section 2(q) of the Act on the ground that no construction is permissible on the said road. However, there was absolutely no material to show that the land kept by the owner for his own convenience as a pathway cannot be used for purpose of construction. Section 2(q) of the Act refers only in respect of land on which construction is not permissible under the Building Regulations. As nothing has been brought on record that approach lands fall within this prohibition of construction, the petitioner cannot seek exemption. No doubt approach road is a necessity for enjoying the property and has to be left open. But this eventuality is covered by Section 2(g) of the Act. Section 2(g) of the Act is regarding "land appurtenant" for purposes of space being kept open. This is the area from which the owner is expected to lay his roads, approaches etc. It is not permissible under the Act to urge that apart from this 500 square metres further area for purposes of approach/road also should be excluded while calculating permissible area under the provisions of the Act. The owner cannot claim benefit under two different heads for keeping land open for approach to his building. The purpose of granting the exemption of 500 square metres as "land appurtenant" is not only to keep open space around the building as "lung space" but also to utilise the same for approach etc.. Leaving the land open for approach is obviously included in the space kept open. We are therefore of the view that the learned single Judge was in error in holding that as the open space was required to be left open for approach, the same has to be excluded from computation to the addition of 500 square metres which is permissible to be excluded under Section 2(g) of the Act. In our view the area of 2250 square metres allegedly used as approach/pathway from main road to the building cannot be excluded and will have to be taken into consideration in the ultimate computation.
7.Thus looked at the position that emerges in our view is as follows :
(i) Total extent cultivation 6288.78 Sq. mts
(ii) The two dwelling unit+ the additional appurtenant lands for those built up units :
775.11 Sq. mts 524.00 Sq. mts 1299.11 Sq. mts
(iii) Rocky area which is prohibited from being constructed under the Building Regulations of the Contonment Board :
1172.00 Sq. mts
(iv) Ceiling limit under Section 4 of the Act considering that the land is in category B specified in Schedule 1 :
1000.00 Sq. mts
(v) It will thus be seen that the area which has to be excluded is :
3741.11 Sq. mts 3471.11 Sq. mts
(vi) As already pointed out the total area being 6288 Sq. mts if the permissible area worked out already is excluded, the excess land would be :
2817.67 Sq. mts It will thus be seen that the impugned order declaring the petitioner to be in excess of 4180.12 Square Metres has to be modified and instead the petitioner is declared to be in excess of 2817.67 Square Metres area.
6. The appeal is thus partly allowed with aforesaid modified declaration. In the circumstances, no order as to costs.